Mims v. Hair
| Decision Date | 07 July 1908 |
| Parties | MIMS et al. v. HAIR. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Barnwell County; R. W Memminger, Judge.
Action by R. J. Mims and another against Sarah Hair. Judgment for plaintiffs, and defendant appeals. Affirmed.
Davis & Best, for appellant.
R. C Holman and B. T. Rice, for respondents.
This is an action by the plaintiffs, as the children of William Mims for the recovery of the land described in the complaint.
In 1864 Mrs. Ellen Mims died, leaving of force her will, which contained the following provisions:
Second clause: "I give and bequeath to my son John Robert Mims, my plantation known as the Billy McDonald place, the said plantation, however, is to be appraised by three disinterested freeholders, one to be chosen by him, and two others by the rest of my children, when the value of said plantation is thus ascertained, my said son John Robert shall pay over to his sister, Mrs. Mary C. Gunter, wife of Leroy Gunter, one seventh thereof, to my son William Mims one seventh thereof. ***"
Fourth clause: "The portion of my estate that my son William Mims will take and be entitled to, under this my last will and testament, I give to him for his and during the term of his natural life, and no longer, and at his death I give the same to such child or children as he may leave living, to be divided among them share and share alike, the portion of property hereby given to my said son William, is in nowise to be subject to his debts, contracts or engagements, but shall be used by him expressly for the purpose of supporting and educating his children."
Ninth clause: "For the more effectually carrying out the several provisions of this my last will and testament, I do hereby nominate, constitute and appoint my son Joseph F. Mims and my friend J. G. W. Duncan executors to this my last will and testament, and also vest the titles to all my estates both real and personal, in my said executors, the better to enable them to see that my directions are strictly followed."
The complaint was in the usual form. The answer contained a general denial, the defense of the presumption of a grant arising from adverse possession for 20 years, and the defense of adverse possession, for the statutory period of 10 years. The jury rendered a verdict in favor of the plaintiffs, and the defendant appealed.
The first exception is as follows: "Because his honor erred in refusing to nonsuit the plaintiffs, when it appears by the will that the title to this property was in the executors, and they having sold it, the defendant acquired an absolute title thereto." This exception cannot be sustained, for the reason that the ground therein mentioned was not relied upon when the motion was made.
The second exception is as follows: "Because his honor erred in allowing A. J. Mims to testify that the land had been divided, and that these parties [meaning the parties under whom plaintiffs claim] occupied said lands, whereas said testimony is in direct conflict with section 400 of the Code of Civil Procedure, in that his honor erred in allowing said witness to testify what lands were occupied by William Mims." The witness A. J. Mims is a grandson of the testatrix, but has never had any interest whatever that could be affected by the event of this action.
The third exception is as follows: "Because the uncontradicted testimony shows that under the will put in evidence here the title to said property was vested in the executors, with power to sell, and the said property was sold and purchased by the defendant, or the one under whom she claims, and it was the duty of the court to so adjudge as matter of law, and, in submitting said question to the jury, the court erred; it appearing, by the records put in evidence and uncontradicted testimony, as aforesaid, that the title to the land is absolutely in the defendant." On the 20th of November, 1871, Joseph Mims, one of the executors, executed a deed of conveyance, in the usual form to John R. Hair, of a certain tract of land containing 176 acres, more or less, and bounded as follows: On the north by lands of M. Willis, on the west by lands of E. A. Hayden, on the south by lands of B. O. Stansell, and on the east by lands of J. R. Mims and the said J. R. Hair. There was testimony to the effect that there was a parol partition of the lands devised to the children of the testatrix; that a tract containing about 76 acres was allotted to William Mims, and that another tract was allotted to Joseph F. Mims, one of the executors; that William Mims sold his tract to Joseph F. Mims, and the deed to Hair embraced both tracts. His honor, the presiding judge, stated to the jury it was conceded that the deed embraces, not only the property named in the complaint, but also the portion of the property which, it is claimed, belonged to the executor individually, as one of the heirs. There was testimony also tending to show, as contended by the appellant, that the land in dispute was not the same as that which had been allotted to William Mims, but was land which had been...
To continue reading
Request your trial